Fisk v. Flores

• Decision Date: 01 January 1875
• Parties: JAMES N. FISK ET AL. v. MIGUEL FLORES ET AL.
• Court: Texas Supreme Court

43 Tex. 340

JAMES N. FISK ET AL.

v.MIGUEL FLORES ET AL.

Supreme Court of Texas.

1875.

APPEAL from Bexar. Tried below before the Hon. George H. Noonan.

I. P. Simpson, for appellants

S. G. Newton, for appellees

MOORE, ASSOCIATE JUSTICE.

This suit was brought by the appellants for title and possession of a lot in the city of San Antonio, granted in February, 1818, by Don Antonio Martinez, colonel of the royal army, and military and political governor of the province, to Maria Inez de los Santos. The validity of this title is not controverted. Both appellants and appellees seem to claim under it, and mutually maintain that they have respectively shown by the chain of transfers upon which they rely the better title to that part of the lot in dispute. It is also claimed by both of them that they have respectively acquired title as against the other by prescription, irrespective of any question as to the superiority of their titles apart from the facts connected with the occupation and possession of the lot.

While both appellants and appellees claim under the grant to de los Santos, neither of them connect themselves with the title to her by a consecutive chain of written transfers, or by direct and positive proof of the donation of the lot by her to her daughter Sebastiana Vela, upon which the parties on both sides seem to count in support of their respective titles.

It appears from the record that after the grant of the lot to de los Santos she improved and resided upon it for a time at least, and that at the time of her death, about 1830, she was living upon it with her daughter Sebastiana Vela and her husband Jose Dolores Ocon; or they were living upon it with her. After her death Sebastiana and her husband continued upon the lot, and although de los Santos left a number of other heirs besides Sebastiana, who must have been fully informed of the fact of the grant of the lot to her, none of them have ever claimed any interest in it by inheritance or otherwise, or controverted or questioned the right of Sebastiana Vela to it, or that of her and her husband, Dolores Ocon, as the case may be.

Appellees claim under a deed from Ocon to Francisco Chaves, dated June 28, 1834, for that part of the lot in dispute. Ocon and his wife Sebastiana Vela continued in the possession and occupation, certainly of that part of the lot not included in the deed to Chaves, until his death, which occurred some time in the year 1834, and Sebastiana Vela continued in like possession until the 4th of August, 1840, when she sold and conveyed the entire lot to Dona Guadalupe Ruiz, from whom appellants claim.

For the proper disposition of the question of title, irrespective of the claim by prescription, it will suffice to say that as appellants deraign their title under said Guadalupe Ruiz, and appellees under said Francisco Chaves, and as no controversy seems to be made as to the regularity of the mesne conveyances by which they respectively derive their title from these parties, the determination of the question as to which of the parties had the better right to the lot depends upon the fact whether the lot was the separate property of Sebastiana Vela, or the community property of said Vela and her husband Ocon.

Appellees made no effort whatever to show any separate or individual title to the lot in Ocon. His right to sell seems to be based solely upon the construction and effect which it is insisted must be given to the recitals in the deed from Vela to Ruiz, offered in evidence by appellants, and under which, as we have said, they claim to derive their title. If Sebastiana acquired whatever title she had to the lot as an heir of her mother, Maria Inez de los Santos, it was, of course, her separate property, and the deed from Ocon to Chaves, in which she did not join, was inoperative and void. And whether she inherited the entire lot, or an undivided interest in it, the appellants, if they have acquired the title or interest which she inherited, could recover the entire lot from the appellees, who, under such circumstances, could be viewed only as mere naked trespassers. (Presley v. Holmes, 33 Tex., 476.)

But as the recitals in the deed under which a party claims is evidence against him, and as by the recitals in the deed from Vela to Ruiz it appears that she did not claim the lot as heir of de los Santos, it is necessary to inquire whether, if the lot passed from de los Santos, as alleged in Vela's deed to Ruiz, it was community property of Vela and Ocon, or her separate estate. The recital to which reference is had reads as follows, viz: “And I, Maria Sebastiana Vela, for myself and for my heirs, by this bargain and grant to and with the said Da. Guadalupe Ruiz, and her heirs and assigns, that I am now the owner of said piece of...